Lord Lucas: My Lords, I am grateful to the noble Baroness for clarification of the kind of thing the Government seek to prevent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blackstone moved Amendments Nos. 78 to 80:

Page 11, line 26, leave out ("determining") and insert ("considering").

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Page 11, line 26, leave out ("a responsible body") and insert ("it").

Page 11, line 28, leave out ("regard shall be had, in particular, to") and insert ("the factors to which a responsible body may have regard include").

The noble Baroness said: My Lords, during the debate in Committee about the inclusion of factors on the face of the Bill, I said that I would look again at the points made by the noble Baroness, Lady Blatch, and the strong feelings expressed by others and that I would reflect on them. I have done so. I have also had discussions with interested parties on this issue.

The amendments in my name respond, I believe positively, to the strength of feeling expressed in the debate. I recognise that for some we may not have gone far enough and Amendments Nos. 81 and 129, which we shall discuss later and which seek to remove the factors from the face of the Bill, reflect that view. However, I have sought to take account of the range of views on this point and this includes a number of responses to the consultation exercise held last spring which requested that such a steer be given on the face of the Bill.

Earlier this week, I received a letter of support from the noble Baroness, Lady Warwick, in her capacity as chief executive of Universities UK. In this letter the noble Baroness highlights the need to strike a balance between the considerations of disabled students and those of higher education institutions to ensure that expectations and practical considerations are matched. The noble Baroness says:

"Clause 27 helps to provide for this balance and so will make the Bill more workable in practice and for that reason we believe that it should stand part of the Bill".

I thank the noble Baroness for her support and that of Universities UK.

The government amendments will remove any suggestion that there is a duty on schools and post-16 providers to take account of the factors in determining whether it is reasonable to have to make an adjustment. Instead there will be a discretion for the institution to take any of the factors into account when it considers it appropriate. This is a more permissive approach.

Some may ask why we did not go further and leave such matters to the codes. However, we remain of the view that it is important that there are factors on the face of the Bill in relation to the duties to make reasonable adjustments. The factors give clarity to providers about the sorts of matters they can bear in mind when considering what is reasonable. The factors reassure providers that they can take such matters into account when considering what is reasonable. The factors make clear to the DRC what needs to be covered in writing the codes. They also give clarity to tribunals and courts about what we consider that providers can legitimately take into account when considering making reasonable adjustments. These are important benefits which would either be lost or diluted if the factors were removed entirely. The government amendments provide a helpful balance in maintaining the factors but softening the approach to them.

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Amendment No. 100 is a technical amendment which simply removes a repetitious definition of "accessibility strategy" and "accessibility plan" already contained in Clause 24. I beg to move.

Baroness Blatch: My Lords, I am grateful for the positive response to what was said in Committee. I admit that I am still seeking to incorporate all the amendments into the Bill to judge how far they go and the degree to which they fall short. Nevertheless, I am grateful for what has been done.

On Question, amendments agreed to.

12.30 a.m.

Baroness Sharp of Guildford moved Amendment No. 81:

Page 11, line 29, leave out from ("had") to end of line 44 and insert ("to the code of practice under section 53A").

The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendment No. 129. The amendments relate again to the question of what are reasonable steps. The Minister mentioned that her amendment softens the words on the face of the Bill. Nevertheless, they are still there and I think that there are grounds for objection. In our lengthy discussion in Grand Committee, I pointed out that in many senses the stipulation made under the provisions put something of a coach and horses through the inclusion provisions. I still believe that.

The Minister has reiterated the argument that she made in Committee. She said:

"We decided that it was right to set out on the face of the Bill the factors that schools and post-16 institutions should take into account when considering reasonable adjustments. That provides absolute clarity on the issues that institutions have to bear in mind and reassures providers that important matters are relevant when determining what is reasonable".--[Official Report, 30/1/01; col. CWH 195.]

Absolute clarity? We are talking about the extent to which a particular step is practicable and about health and safety requirements. There is anything but absolute clarity. The issues remain extremely vague.

We are also concerned about the lack of logic in what the Government are saying. Whenever we are confronted by the words, "reasonable steps" and try to write in some illustrations of what might be reasonable, we are told that that would be too inflexible, because times change. However, now we have an example of the Government wanting to write illustrations into the Bill. They tell us that it is essential to illustrate what they want to do. That is not logical. We have been told many times that the code of practice is the right place for such detail. If reasonable steps are to be defined in the code of practice, it is appropriate to put them there in this case.

"To ensure that the new civil rights recommended are fully understood and providers of school education address the barriers that disabled children face, a Code of Practice will be essential. This should explain the new rights, the factors to be taken into account in assessing whether an adjustment or steps to provide

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education by alternative means are reasonable, and examples of when less favourable treatment of a disabled child may be unavoidable".

The DRTF was clear about the fact that the code of practice was the place for such detail. It is not logical for the Government on the one hand to argue that it is too inflexible to write illustrations on the face of the Bill when we want them, and yet on the other hand not to refer this issue to the code of practice. I recognise that there is a balance to be drawn. The Minister lectured us about that in Grand Committee and said how useful it was to have illustrations in the code of practice because of the need to draw that balance.

I say to the noble Baroness, Lady Warwick, of course Universities UK would say that, wouldn't it? We have told the Minister time and again that not enough resources are being put into the system to meet the requirements of the Bill. Universities UK and the further education colleges are very worried about the resource implications of the Bill and do not feel that the department has yet remotely understood the depth of those implications. However, the right place in both cases is the code of practice. I beg to move.

Baroness Darcy de Knayth: My Lords, I support the noble Baroness in her plea. She has been very eloquent. I hope that the Minister might think again about putting this matter into the code of practice.

Baroness Blackstone: My Lords, I am sorry that the noble Baroness, Lady Sharp, does not believe that the Government amendments go far enough. We believe that they provide the right balance. Perhaps I may also say to her that I believe in circumstances of this kind we should take seriously what bodies representing institutions have to say. Universities UK has made it absolutely clear to us that it prefers to have these factors on the face of the Bill. Schools have also argued for extra clarity and knowing that these are the kinds of factors they can take into account. This is, as amended, permissive. I would have thought that it goes a long way towards meeting the requirements of the noble Baroness.

There appears to be some misunderstanding that the factors will limit the reasonable adjustment duty on schools and post-16 providers. I emphasise that that will not be the case. They will help both schools and post-16 institutions to find whether a particular adjustment for a disabled pupil or student would be reasonable. These institutions may have to consider issues such as costs, as the noble Baroness has already said, available resources and the effects on other pupils or students. If they could not take account of such factors the reasonable adjustment duty would become almost unworkable.

I also challenge the assumption that schools and post-16 providers might be trying to avoid making adjustments for disabled learners. It is well understood in the debates we have had that most schools and post-16 providers are already educating pupils and students with disabilities and using their best endeavours to ensure that the children receive a good education

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alongside their peers. In the light of what I have said I hope that the noble Baroness will withdraw her amendment.